Citation Nr: 18160442
Decision Date: 12/28/18	Archive Date: 12/26/18

DOCKET NO. 15-17 678
DATE:	December 28, 2018
ORDER
Entitlement to nonservice-connected pension benefits is denied.
REMANDED
Entitlement to service connection of pes planus is remanded.
Entitlement to service connection of a lung condition is remanded.
Entitlement to service connection of a chest condition is remanded.
Entitlement to service connection of lymphadenopathy (claimed as lymph nodes) is remanded.
Entitlement to service connection of chancroids (claimed as abscesses) is remanded.
FINDINGS OF FACT
1.  The Veteran did not have 90 days of active service during a statutory period of war; as of November 2017, he was employed and therefore he is not permanently and totally disabled.
CONCLUSIONS OF LAW
1.  The criteria for basic entitlement to nonservice-connected pension benefits have not been met.   38 U.S.C. §§ 101, 5107; 38 C.F.R. §§ 3.2, 3.3, 3.102.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from June 1975 to June 1978.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 decision letter, and January and September rating decisions, all issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.
In November 2017, the Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO.  A transcript of that hearing is of record.  
1. Entitlement to nonservice-connected pension benefits
The Veteran seeks entitlement to nonservice-connected pension benefits.  The Board finds that the claim must be denied.
Basic entitlement to an improved monthly pension exists if a veteran (1) served in the active military, naval or air service for 90 days or more during a period of war (38 U.S.C. 1521(j)); (2) meets the net worth requirements under 38 C.F.R. §3.274; (3) does not have an annual income in excess of the applicable maximum annual pension rate; (4) and is age 65 or older or is permanently and totally disabled from nonservice-connected disability not due to the veteran’s own willful misconduct. 38 C.F.R. § 3.3(a)(3).
Periods of war are prescribed by Presidential proclamation or law.  For a Veteran who served in the Republic of Vietnam, the Vietnam era period of war began on February 28, 1961, and ended on May 7, 1975.  However, for a Veteran who did not serve in the Republic of Vietnam, the Vietnam era period of war began on August 5, 1964, and ended on May 7, 1975. The Persian Gulf era commenced on August 2, 1990, and continues to the present. 38 U.S.C. § 101; 38 C.F.R. § 3.2.
In the present case, the Veteran’s period of service began on June 6, 1975, one month after the statutory end of the Vietnam era.  He left service in June 1978 with no further active service of record.  Therefore, he does not meet the primary requirement for nonservice-connected pension benefits, namely 90 days of active service during a period of war.
The Board further observes that in his hearing before the undersigned he testified that he was presently employed.  Given that he is employed, he admitted that he was not permanently and totally disabled.  Therefore, he also does not meet the final criteria for a grant of nonservice-connected pension benefits.
In sum, because the Veteran is no permanently and totally disabled, and because he did not serve the required 90 days of active service during a period of war, the Board finds that the claim for nonservice-connected pension benefits must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.
REASONS FOR REMAND
1. Entitlement to service connection of pes planus 
In his hearing before the undersigned, the Veteran testified that he has sought treatment from multiple providers for his foot disability, to include foot specialists and neurologists.  A review of the claims file has not revealed any records pertaining to that treatment.  Thus, on remand, the Veteran should be requested to identify any outstanding treatment records pertaining to his feet.  Thereafter, if new and relevant records are obtained, an addendum opinion should be rendered which considers those treatment records.  
2. Entitlement to service connection of a lung condition is remanded.
3. Entitlement to service connection of a chest condition is remanded.
4. Entitlement to service connection of lymphadenopathy (claimed as lymph nodes) is remanded.
The Veteran’s service treatment records reveal multiple complaints of chest congestion and other lung-type symptoms to include an episode of lymphadenopathy.  Post-service records show various treatment and diagnoses for sarcoidosis and bronchitis.  In his hearing the Veteran has testified that he requires steroid treatments to prevent swelling of the lymph nodes in his chest.  Private treatment records do show use of prednisone.  
In light of the above, the Veteran is yet to be afforded a VA examination which addresses any possible lung, chest, or lymph node disease or disability.  As such, a remand is necessary to afford a VA examination and obtain a medical opinion on any possible medical nexus to service.
5. Entitlement to service connection of chancroids (claimed as abscesses) is remanded.
The Veteran’s service treatment records show that in November 1976 he was treated for a left perineal abscess and chancroid in the groin area.  Post service treatment records document ongoing condyloma in the groin area and mycoses of the lower extremities.  Despite this evidence, the Veteran has yet to be afforded a VA examination in connection with his claim.  Therefore, on remand, an examination should be conducted and a medical opinion rendered.  
The matters are REMANDED for the following action:
1. Invite the Veteran to submit any additional evidence in support of his claim.  Particularly, the Veteran should be requested to identify any outstanding medical treatment records pertaining to his feet, to include the foot specialist and neurologist records identified in his hearing.  VA should make all necessary attempts to obtain any outstanding private treatment records identified by the Veteran.
2. If the Veteran identifies any new private treatment records pertaining to his feet, and if VA is able to obtain those records, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s pes planus, which clearly and unmistakably pre-existed service, was at least as likely as not aggravated (non-temporary increase in severity) by service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress.

3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any lung or chest disability.  The examiner should identify any diagnosed pathologies pertaining to the Veteran’s chest or lungs, to include bronchitis, sarcoidosis, asthma, or lymphadenopathy.  The examiner then must opine whether any identified pathology is at least as likely as not related to an in-service injury, event, or disease, including his in-service reports of respiratory distress and lymph node issues.  
4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any skin disability.  The examiner should identify any diagnosed pathologies pertaining to the Veteran’s skin, to include chancroids, boils, condylomas, warts, or mycoses.  The examiner then must opine whether any identified pathology is at least as likely as not related to an in-service injury, event, or disease, including his in-service diagnosis of chancroids and perineal abscess.

 
DEBORAH W. SINGLETON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Pryce, Associate Counsel 

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